Friday, August 6, 2010

National Park Permit Regulations Invalidated

In Boardley v. U.S. Department of the Interior, the D.C. Circuit invalidated National Park Service regulations requiring that small groups and even individual speakers obtain a permit before speaking or assembling in national parks. The regulations at issue required that speakers communicate and assemble only within certain "free speech areas" in the parks. The court held that these areas were designated public forums. With regard to the permit requirement, the court held that it was not narrowly tailored to serve the government's interests in safety and order and did not leave open ample alternative channels of communication. The court was particularly concerned that the permit requirements applied to even small groups and individuals, appeared to render spontaneous speech and assembly impossible, and failed to preserve any opportunity for communicating messages anonymously.

With regard to the breadth of the regulations, the court wrote (slip op. at 25; citations omitted):

The NPS regulations target much more than necessary. If a Girl Scouts leader musters her scouts onto a pavilion in a “free speech area” of Glacier National Park and proceeds to lecture them about the effects of global warming, she will have conducted both a “meeting” and a “gathering”(perhaps also an “assembly”) for which a permit would have been required. An elementary school teacher who leads eight students on an excursion to the Canyon de Chelly National Monument and, within a “free speech area,” shows off her best imitation of a traditional Navajo dance presumably has hosted an unlawful “demonstration.” If a believer in Creationism visits the Hagerman Fossil Beds National Monument and, within a “free speech area,” quietly hands out literature disputing the theory of evolution, he is guilty of “distribut[ing] . . . printed matter” without a permit. Under a plain reading of the NPS regulations, all of this speech is banned unless a permit is first acquired, even though none of it remotely threatens any of the government’s interests.